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Court not bound by Nominee

By July 18, 2019July 20th, 2019No Comments

In the matter of CFL Finance Ltd v Bass (Good faith to voluntary arrangements : consumer credit law) [2019] EWHC 1839 https://www.bailii.org/ew/cases/EWHC/Ch/2019/1839.html the Court suggested that the investigations undertaken by the Nominee were not binding on it:

99. I agree with Mr Shaw that the nominees were entitled, without more, to rely on the information they obtained for the purposes they obtained it. It is rarely necessary to conduct a full investigation prior to a meeting and common sense and authority dictate that limited investigations are ordinarily justified. The nominees have gone further than the nominee had for the IVA. In that case Mr Rubin was recorded as accepting that his investigations were “thinner than they should be”. That was insufficient. This is an extraordinary case and required more than the usual amount of investigation. I find that the investigations undertaken by the nominees were reasonable in the circumstances. I have regard to the fact that three days of Court time has been taken to decide if the information provided by MG is cogent, whether the debt owed to CFL is enforceable, the weight to give to the evidence of the Laser Trust, as opposing creditor, the application of good faith to the facts of this case, the exercise of discretion to adjourn the hearing of the bankruptcy petition for the purpose of permitting a meeting of creditors, and the limited resources available for investigation.

100. That a nominee has carried out reasonable investigations within the ambit of her duties as nominee, those investigations being limited by funding and time, and taking account of a nominee’s inevitable reliance on information provided by a debtor, does not mean that a Court should be bound by the opinion of the nominee. The fact of a nominee who acts and reports in accordance with SIP 3.1, as I find the nominees have here, does not mean that the results of those investigations are sufficient for all purposes. There are undoubtedly further investigations that can be made into the asset position of MG and how the side agreements (KSA and Bank Leumi settlement agreement) came about.

101. Where there is independent evidence before the Court that contradict the views of a nominee or after a closer degree of scrutiny the Court finds that the evidence provided is insufficient, the Court may reach a different conclusion to that of the nominee.

144. The Nominees had complied with their obligations to investigate. Those investigations are inevitably limited by funding and time and take account of a nominee’s inevitable reliance on information provided by a debtor. The Court is not bound by the opinion of the nominee. The results of a nominee’s investigations are not sufficient for all purposes (paras 98-100).

Elliot Green

Licensed Insolvency Practitioner & Chartered Accountant. We Know Insolvency Inside Out.

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